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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E026 OF 2025
ERICK WAMALWA alias FUNJE…………………………..……..………..APPELLANT
VERSUS
REPUBLIC....…….……………………………………….…….……….…RESPONDENT
(Being an appeal from the conviction and sentencing of Hon. Irene Kabuteh (RM) in Kitale CMC SO Case No. E184 of 2023)
JUDGMENT
1. The appellant was arraigned before the Resident Magistrate at Kitale in Sexual Offences Case No. E184 of 2023 charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 23/10/2023 at Sabwani village in Kiminini sub location within Trans-Nzoia County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of NB a child aged 10 years old.
2. In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 23/10/2023 at Sabwani village in Kiminini sub location within Trans-Nzoia County, the appellant unlawfully and intentionally caused the contact between genital organs namely penis and genital organs namely vagina of NB a child aged 10 years old.
3. Because the appellant pleaded not guilty to the charges, the matter proceeded to a full trial during which the prosecution called four (4) witnesses. Their evidence may be summarized as follows:
4. A voire dire examination was conducted on PW1, the victim. The court observed that the victim was frightened and appeared not to know the consequences of lying and she thus gave unsworn evidence. PW1 stated that she was 11 years old. She recalled that at the time of the incident, she was a Grade 4 pupil at Misemwa Primary School. She further explained that their homestead comprised four houses: a separate kitchen, a house occupied by the appellant and her mother, and another belonging to her grandmother. She stated that she used to live in the kitchen together with her brother, Lucky, until he was involved in an accident and had to move to the main house.
5. She recounted that on 23/10/2023 at around 10:00 p.m., while she was setting up her mosquito net, she heard a knock on the door and recognized the voice of the person as that of her father, the appellant. He asked her to open the door, and she complied. Upon entering, he instructed her to remove her clothes, but she refused. He then picked a stick from the firewood and threatened to beat her.
6. He then removed her skirt and underwear and proceeded to engage in sexual intercourse with her. She stated, “he put his thing for peeing in mine”.
7. He threatened her when she mentioned that she might tell her mother, instructing her to remain silent. After the act, he left the kitchen and closed the door. The following day, she left school and returned home early at around 10:00 a.m., and reported the incident to her mother. She was subsequently taken to Bikeke Hospital, and the matter was later reported to the Police. She further explained that there were no lights at the time; however, using the light from the appellant’s phone, she was able to identify the appellant as the perpetrator, stating that she recognized his voice during their conversation.
8. On cross-examination, she stated that she had never been sexually defiled by anyone prior to the incident. She explained that she wore different clothes to school the following day, but retained the same underwear. She further stated that she did not inform her teacher or any fellow students about the incident, and that she did not observe any bleeding from her genitalia. Additionally, she admitted to having stolen money on a previous occasion.
9. PW2, the victim’s mother, testified that on 21/10/2023 at around 10:00 a.m., she was at home with the appellant’s grandmother preparing to attend a graduation ceremony when PW1 returned home early. She inquired whether anything was wrong, but PW1 initially declined to respond. She then asked her daughter to go to the kitchen and eat. Upon joining her in the kitchen, she observed that PW1 appeared to have been crying. After further questioning, PW1 disclosed that on the previous night, the appellant had committed a sexual act (“tabia mbaya”) against her. PW2 began screaming, and her in-laws urged her to calm down to prevent the appellant from causing further harm. They also advised her to take PW1 to the hospital. PW2 took PW1 first to the Bikeke Assistant Chief, who instructed her to report the incident at Bikeke Police Station, which she did. They subsequently went to Bikeke Health Centre, where PW1 received medical attention. Later, they proceeded to Kitale County Referral Hospital, where PW1 was admitted and a P3 form was completed. The appellant was eventually arrested, and PW2 relocated from the family home with her children. She further clarified that the appellant was PW1’s stepfather.
10. On cross-examination, PW2 stated that she had gone to sleep before the appellant, but upon waking up, she found him present. She explained that although the kitchen and the main house are in close proximity, she did not hear PW1 scream as she was asleep. She further stated that since she had stopped working in May, she and the appellant had experienced disagreements, and she denied allegations that she was an alcoholic. She added that the appellant would sometimes forcefully engage in sexual intercourse with her and acknowledged that she had sexual relations with him after the incident in question.
11. PW3 testified that she was the investigating officer attached to Bikeke Police Station. She recalled that on 24/10/2023, at around midday, a mother and her daughter came to the station, reporting that the daughter had been sexually defiled by her stepfather. The child narrated that the appellant knocked on her door, identified himself, and when she opened it, he forcibly had sex with her. She tried to scream but did not get help. Thereafter, the appellant returned to sleep with his wife. The following day, the child reported the incident to her mother, after which she was taken to Kitale County Referral Hospital for treatment. The appellant was subsequently arrested. PW3 produced the child’s birth certificate, marked as PExh1, which indicated that she was born on 28/1/2013.
12. On cross-examination, she stated that she was not aware of any disagreements between the appellant and PW2. She further noted that PW1 was currently residing at a children’s home and observed that the child appeared to be mentally disturbed following the incident.
13. PW4 testified that he was a Senior Clinical Officer at Kitale County Referral Hospital. He produced the treatment notes of his colleague, who had examined the victim and with whom he had worked since 2022, and confirmed that he was familiar with the colleague’s handwriting. He stated that the victim was examined on 26/10/2023 and that her hymen was slightly open, with inflammation and redness on the labia minora and majora, but without any tears. He explained that such findings could result from either an infection or sexual activity. He further noted that there was no discharge. PW4 produced the treatment notes and the P3 form as exhibits.
14. On cross-examination, he stated that physical activities, such as playing, could result in the breaking of the hymen, and that bleeding may be visible in young minors. He further opined that, based on the age of the victim, defilement would typically result in tears; accordingly, he expressed the view that the victim was not penetrated by a large object.
15. On re-examination, he stated that his colleague had established that there was partial penetration. He explained that redness could result from various causes, and in this case, there was no evidence of infection, although he noted that infections may have an incubation period of up to 30 days.
16. On being examined by the court, he stated that in cases of defilement of a 10-year-old girl, injuries or tears would generally be visible for up to ten days, and that the size of the penile shaft would be a relevant factor.
17. The evidence of PW4 marked the close of the prosecution’s case. The court ruled that a prima facie case had been established and accordingly, the accused was called upon to enter his defense.
18. The appellant was the only witness for the defence. In his sworn testimony, he stated that the cause of the dispute was his wife’s alleged alcoholism, which had also led her to stop working. He explained that she would often return home late at night, leaving him to care for the children. The appellant admitted that on one occasion he had struck his wife when she returned home intoxicated, injuring her eyes and hands, and that she subsequently did not return to work for some time.
19. He narrated that the following morning, after the incident in question, he heard his wife wailing. Upon inquiry, she asked him why he had done “tabia mbaya” to her child. He questioned what she meant, but she initially did not respond. She then stated that the child had told her that he had done “tabia mbaya” to her the previous night. The appellant claimed that he advised his wife to take the child to the hospital, which they did that evening. He further explained that his wife later returned without the child and informed him that the child was at a friend’s place and that they had been advised to take her to Kitale County Referral Hospital. Thereafter, she packed her belongings and left the house.
20. The appellant further stated that on the night of the incident, they had had a disagreement. Later that night, he found his wife on the phone, and at about 1:00 a.m., she received a call and subsequently left the house. He was later arrested and taken to the police station. He denied committing the charges.
21. On cross-examination, he stated that his mother and grandmother had advised him to carry his own cross.
22. His evidence marked the close of the defense case. Judgment was subsequently delivered on 19/3/2025, upon which he was convicted and sentenced to forty years’ imprisonment.
23. Dissatisfied with the judgment of the trial court, the appellant lodged this appeal, seeking to have the conviction quashed and the sentence set aside. The appeal faults the judgment on the grounds that; that the element of penetration was not established; that the prosecution failed to discharge its burden of proof; that the prosecution’s evidence was fraught with contradictions and inconsistencies; and lastly, that his defense was rejected without cogent reasons.
24. The appeal has been argued by way of written submissions, which may be summarized as follows:
Appellant’s Submissions
25. On the ground that the element of penetration was not proved, the appellant submits that the evidence of the clinical officer who testified as PW4 did not establish penetration and was fraught with inconsistencies. He contends that PW4 stated that the victim’s broken hymen could have resulted from either infection or sexual activity, but did not specify the actual cause in this case. He refers to PW4’s testimony that, if defilement had occurred, there would have been tears, yet no tears were observed. He further argues that although PW4 indicated that the victim’s hymen was partially broken, he did not clarify whether the hymen appeared fresh or old. The appellant submits that where a witness gives contradictory evidence, such evidence should not be accepted as truthful, citing Riwala v R [1935] EA Appeal No. 570. He further relies on Allan Mungai Githongo v R Nairobi Appeal No. 343 of 2004, for the proposition that defilement can only be proved where there is credible evidence of penetration. He thus urged the court to find PW4 to be an incredible and unreliable witness.
26. The appellant further contends that the perpetrator was not properly identified. He argues that PW1 admitted that although there was no light, they used the light from a phone, which, in his view, indicates that the victim may not have clearly seen the person who entered the house. He further submits that PW2 testified that PW1 returned home early from school, but no evidence was tendered to show that PW1 actually attended school that day. He adds that PW2 also stated that when she woke up, the appellant was in bed with her, and admitted to having disagreements with him.
27. He relies on Ocharo Obaiygwa v R CA No. 64 of 2003, arguing that it is dangerous to convict solely on the evidence of a woman and a girl, as they may sometimes tell false stories that are difficult to resolve.
28. He reiterates the inconsistencies in PW4’s evidence, noting that the officer initially concluded that the victim had been defiled, yet also stated that defilement would ordinarily result in tears, which were absent. He further referred to PW4’s statement that, in a child aged ten years, tears would generally be visible up to ten days after defilement.
29. On the ground that his evidence was not adequately considered, the appellant argues that PW2 confirmed having disagreements with him and that they were not on good terms, which, he contends, indicates a possible grudge. He further notes that the pre-sentence report indicated that the victim continues to experience shame, guilt, and anger over the incident, and that she regrets reporting it. The appellant urges the court to consider these submissions and allow the appeal.
Respondent’s Submissions
30. On the issue of whether penetration was proved, the respondent submits that, citing Alex Chemwotei Sakong v R [2018] eKLR, so long as there is penetration, even if only superficial, the ingredient of the offence is established. Penetration need not be deep into the girl’s organ.
31. The respondent further cites Kassim Ali v R [2021] eKLR for the proposition that a sexual offence can be proved solely by the oral evidence of the victim.
32. The respondent reiterates the evidence of the victim, who testified that the appellant went to the kitchen where she was sleeping and demanded that the door be opened. Upon recognizing his voice, she opened the door. The appellant then instructed her to remove her clothes, and when she refused, he threatened to beat her. She then removed her skirt and underwear, and the appellant removed his trousers and “put his thing for peeing in hers”. The respondent submits that this evidence was corroborated by PW4, who stated that the victim’s labia minora and majora were inflamed and the hymen partially torn, and that the examining doctor concluded that the victim had been defiled.
33. On the issue of identification, the respondent submits that the appellant was known to the victim prior to the incident. The victim referred to him as “father Erick” and, in her evidence, called him “baba.” This was corroborated by PW2, who confirmed that the appellant was the victim’s stepfather. The respondent further submits that the victim identified the appellant by his voice and with the aid of light from a phone.
34. On the issue of the victim’s age, the respondent submits that her birth certificate, produced in court, recorded her date of birth as 28/1/2013, establishing that she was ten years old at the time of the incident. The respondent adds that the P3 form and treatment notes corroborate her approximate age as ten years.
35. On whether the appellant’s evidence was considered, the respondent submits that his contention that he was charged due to a dispute between the victim and her mother over alleged drunkenness was unsubstantiated. The respondent further submits that the evidence of the victim was corroborated, and for this reason, the trial court rightly found the complainant’s evidence to be consistent and credible, thereby rejecting the appellant’s testimony.
36. On the issue of sentence, the respondent submits that the minimum sentence under the Sexual Offences Act for defilement of a child below the age of eleven years is life imprisonment. The trial court, having exercised its discretion, imposed a sentence of forty years’ imprisonment, which the respondent submits was lenient rather than harsh.
37. The respondent therefore prays that the appeal be dismissed.
Issues, Analysis and Determination
38. Having answered to the duty on a first appeal, the court has considered the grounds of appeal, the record of the trial court, and the submissions of both the appellant and the Respondent, and identifies the following issues for determination:
a) Whether the ingredients of the offence of defilement were proved by the prosecution against the appellant, beyond reasonable doubt?
b) Whether the defense advanced by the appellant was duly considered by the trial court?
Whether the ingredients of the offence of defilement were proved by the prosecution against the appellant beyond reasonable doubt.
39. Section 8(1) of the Sexual Offences Act codes that an offence of defilement occurs when person commits an act which causes penetration with a child. In George Opondo Olunga v Republic [2016] eKLR, the Court held that to establish defilement, the prosecution must prove three essential elements; the age of the victim, penetration, and proper identification of the perpetrator. Those elements must be cumulative and just failure to prove one of the three is fatal to the prosecution’s case.
40. On the age of the victim, the Court of Appeal, in Hadson Ali Mwachongo v Republic [2016] eKLR, emphasized that proof of the victim’s age is an essential element of the offence because the prescribed sentences are dependent on the age of the victim.
41. The same Court of Appeal, in Edwin Nyambogo Onsongo v Republic [2016] eKLR, observed that the age of a victim may be proved through credible documentary evidence, such as a birth certificate or baptismal card, by oral evidence from the child if sufficiently intelligent, by testimony of parents or guardians, or through medical assessment. The Court stressed that the evidence, regardless of form, must be credible and reliable. The court stated as follows:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
42. In the present case, PW3 produced the victim’s birth certificate, admitted as PExh1, showing that she was born on 28/1/2013. Given that the incident occurred on 23/10/2023, it was by evidence established beyond doubt that the victim was ten (10) years old at the material time. Court therefore finds that the production of the birth certificate was sufficient and credible proof of the victim’s age.
43. Penetration is by section 2 of the Sexual Offences Act defined the partial or complete insertion of the genital organ of a person into the genital organs of another person.
44. The testimony of a victim alone is, in itself, sufficient to establish penetration under section 124 of the Evidence Act Cap 80 provided that the court gets satisfied that the victim is speaking the truth.
45. The core of the prosecution’s case rested upon the oral evidence of the victim, PW1. PW1 recounted that on 23/10/2023 at 10:00 p.m., while preparing her mosquito net, she heard a knock at the door and recognized the voice of her father, the appellant. She opened the door, and he instructed her to remove her clothes. Upon her refusal, he threatened her with a stick. The appellant then removed her skirt and underwear and engaged in sexual intercourse with her. The victim’s testimony, in her own words, was that “he put his thing for peeing in mine. It is of critical note that upon the court administering voire dire on the witness, it was never satisfied that she was possessed of sufficient intelligent to be able to appreciate the magnitude or meaning of an oath and thus directed that she gives unsworn statement.
46. That position brings to question the weight to be accorded to that evidence and the legal consequence of receiving unsworn evidence from a victim of such tender years. While Section 124 of the Evidence Act, Cap 80, allows a conviction in a sexual offence to be founded solely on the oral evidence of the victim, provided the court is satisfied that the victim is telling the truth, this provision applies primarily to sworn testimony. For the unsworn evidence of a child of tender years, a distinct and stringent rule of prudence applies. Where the court finds the witness’s reliability insufficient to permit sworn evidence, the resulting unsworn statement must be treated with profound caution and cannot form the sole basis of conviction unless corroborated in a material particular that implicates the accused.
47. The foregoing is the guidance one derives from the decision in Amber May vs The Republic [1979] KLR. 38 where the High Court held that unsworn statement has no probative value notwithstanding the provisions Section 211(1) of the Criminal Procedure Code. On Appeal against that decision and reported as May vs The Republic [1981] KLR. 129, the Court of Appeal held-
“From all this we are satisfied that an unsworn statement is not evidence as that expression is generally understood. It has no probative value, but should be taken into consideration in relation to the whole of the evidence….an unsworn statement is not, strictly speaking evidence and the rules of evidence, cannot be applied to unsworn statement. It has no probative value, but it should be considered in relation to the whole of the evidence. Its potential is persuasive rather than evidential. For it to have value it must be supported by evidence recorded in the case.”
48. More recently, in Waithaka v Republic [2024] KEHC 3523 (KLR), the court held that when cross-examination was not allowed for a (minor) complainant not possessed of sufficient intelligence and given without an oath, the unsworn evidence was rendered worthless and this failure was fatal to the prosecution’s case. The court held as follows:
“Section 124 of the Evidence Act could have been useful. However, it is not since the minor was either untruthful or confused. There is no other evidence against the Appellant.
The worst part of the matter, is that we do not know which part, this particular Appellant is said to have penetrated and with what gadget was used. To makes matters worse, the evidence of the minor is worthless. There is a difference between unsworn evidence given by an accused and unsworn evidence given by a witness.
Witness unsworn evidence must still be subjected to cross examination. In this case, the court failed the parties by failing to allow the Appellant to cross examined the minor. Without cross examination the evidence is as if it was never given. That is a lapse in the procedure.”
49. Accordingly, while it is true in law that, even the sole evidence of the victim may suffice to found a conviction in sexual offences, that evidence must itself be cogent and credible to the satisfaction of the court. In this matter, the evidence of the victim falls far short of passing as credible but worthless. It is worthless for all intents and purposes and could not have been the basis to prove identification and the fact of penetration.
50. That holding leaves the only other evidence to be that of the medical officer, PW4. That witness told the court that the victim was examined by his colleague on 26/10/2023 and that her hymen was slightly open, with inflammation and redness on the labia minora and majora, though without tears. He explained that such findings could result from infection or sexual activity. The evidence was that open ended and not affirmative of genital penetration as the only cause of the observations made on the victim’s genitalia. It left it possible that even an infection could have resulted in the observations made. That kindly of evidence creating different possibilities invite reasonable doubt in the mind of the court which doubt must always be resolved in favour of the accused. To the extent that the trial court failed to give the benefit of that doubt to the appellant, it erred. That error must now fall for remedy on an appeal like this.
51. The appellant fault of PW4’s evidence as inconsistent is thus well founded. The court notes that while the officer concluded that the victim had been defiled, he also stated that defilement typically results in tears, which were absent. PW4 further asserted that in a child aged ten, tears would generally remain visible for up to ten days. That was yet another aspect of the evidence that created reasonable doubt whether there was indeed a penetration of the victim as alleged.
52. It is thus to court, upon reevaluation of the evidence on record that there was never credible evidence on the elements of penetration and identification. Without proof of the two beyond reasonable doubt, the conviction entered by the trial court stands shaky and unsafe. When so shaky and unsafe the same invite quashing.
53. Having reached the conclusion that there was never proof of penetration and identification of the appellant as the perpetrator, no useful purpose would be served by seeking to evaluate how well the evidence of the appellant was considered. The court finds the appeal merited and allows it with the consequence that the conviction is quashed and the sentence founded upon it set aside.
54. Let the appellant be set at liberty forthwith unless otherwise lawfully held.
Dated, signed and delivered Virtually this 21st day of November 2025.
Patrick J O Otieno
Judge
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E026 OF 2025
ERICK WAMALWA alias FUNJE…………………………..……..………..APPELLANT
VERSUS
REPUBLIC....…….……………………………………….…….……….…RESPONDENT
(Being an appeal from the conviction and sentencing of Hon. Irene Kabuteh (RM) in Kitale CMC SO Case No. E184 of 2023)
JUDGMENT
1. The appellant was arraigned before the Resident Magistrate at Kitale in Sexual Offences Case No. E184 of 2023 charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 23/10/2023 at Sabwani village in Kiminini sub location within Trans-Nzoia County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of NB a child aged 10 years old.
2. In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 23/10/2023 at Sabwani village in Kiminini sub location within Trans-Nzoia County, the appellant unlawfully and intentionally caused the contact between genital organs namely penis and genital organs namely vagina of NB a child aged 10 years old.
3. Because the appellant pleaded not guilty to the charges, the matter proceeded to a full trial during which the prosecution called four (4) witnesses. Their evidence may be summarized as follows:
4. A voire dire examination was conducted on PW1, the victim. The court observed that the victim was frightened and appeared not to know the consequences of lying and she thus gave unsworn evidence. PW1 stated that she was 11 years old. She recalled that at the time of the incident, she was a Grade 4 pupil at Misemwa Primary School. She further explained that their homestead comprised four houses: a separate kitchen, a house occupied by the appellant and her mother, and another belonging to her grandmother. She stated that she used to live in the kitchen together with her brother, Lucky, until he was involved in an accident and had to move to the main house.
5. She recounted that on 23/10/2023 at around 10:00 p.m., while she was setting up her mosquito net, she heard a knock on the door and recognized the voice of the person as that of her father, the appellant. He asked her to open the door, and she complied. Upon entering, he instructed her to remove her clothes, but she refused. He then picked a stick from the firewood and threatened to beat her.
6. He then removed her skirt and underwear and proceeded to engage in sexual intercourse with her. She stated, “he put his thing for peeing in mine”.
7. He threatened her when she mentioned that she might tell her mother, instructing her to remain silent. After the act, he left the kitchen and closed the door. The following day, she left school and returned home early at around 10:00 a.m., and reported the incident to her mother. She was subsequently taken to Bikeke Hospital, and the matter was later reported to the Police. She further explained that there were no lights at the time; however, using the light from the appellant’s phone, she was able to identify the appellant as the perpetrator, stating that she recognized his voice during their conversation.
8. On cross-examination, she stated that she had never been sexually defiled by anyone prior to the incident. She explained that she wore different clothes to school the following day, but retained the same underwear. She further stated that she did not inform her teacher or any fellow students about the incident, and that she did not observe any bleeding from her genitalia. Additionally, she admitted to having stolen money on a previous occasion.
9. PW2, the victim’s mother, testified that on 21/10/2023 at around 10:00 a.m., she was at home with the appellant’s grandmother preparing to attend a graduation ceremony when PW1 returned home early. She inquired whether anything was wrong, but PW1 initially declined to respond. She then asked her daughter to go to the kitchen and eat. Upon joining her in the kitchen, she observed that PW1 appeared to have been crying. After further questioning, PW1 disclosed that on the previous night, the appellant had committed a sexual act (“tabia mbaya”) against her. PW2 began screaming, and her in-laws urged her to calm down to prevent the appellant from causing further harm. They also advised her to take PW1 to the hospital. PW2 took PW1 first to the Bikeke Assistant Chief, who instructed her to report the incident at Bikeke Police Station, which she did. They subsequently went to Bikeke Health Centre, where PW1 received medical attention. Later, they proceeded to Kitale County Referral Hospital, where PW1 was admitted and a P3 form was completed. The appellant was eventually arrested, and PW2 relocated from the family home with her children. She further clarified that the appellant was PW1’s stepfather.
10. On cross-examination, PW2 stated that she had gone to sleep before the appellant, but upon waking up, she found him present. She explained that although the kitchen and the main house are in close proximity, she did not hear PW1 scream as she was asleep. She further stated that since she had stopped working in May, she and the appellant had experienced disagreements, and she denied allegations that she was an alcoholic. She added that the appellant would sometimes forcefully engage in sexual intercourse with her and acknowledged that she had sexual relations with him after the incident in question.
11. PW3 testified that she was the investigating officer attached to Bikeke Police Station. She recalled that on 24/10/2023, at around midday, a mother and her daughter came to the station, reporting that the daughter had been sexually defiled by her stepfather. The child narrated that the appellant knocked on her door, identified himself, and when she opened it, he forcibly had sex with her. She tried to scream but did not get help. Thereafter, the appellant returned to sleep with his wife. The following day, the child reported the incident to her mother, after which she was taken to Kitale County Referral Hospital for treatment. The appellant was subsequently arrested. PW3 produced the child’s birth certificate, marked as PExh1, which indicated that she was born on 28/1/2013.
12. On cross-examination, she stated that she was not aware of any disagreements between the appellant and PW2. She further noted that PW1 was currently residing at a children’s home and observed that the child appeared to be mentally disturbed following the incident.
13. PW4 testified that he was a Senior Clinical Officer at Kitale County Referral Hospital. He produced the treatment notes of his colleague, who had examined the victim and with whom he had worked since 2022, and confirmed that he was familiar with the colleague’s handwriting. He stated that the victim was examined on 26/10/2023 and that her hymen was slightly open, with inflammation and redness on the labia minora and majora, but without any tears. He explained that such findings could result from either an infection or sexual activity. He further noted that there was no discharge. PW4 produced the treatment notes and the P3 form as exhibits.
14. On cross-examination, he stated that physical activities, such as playing, could result in the breaking of the hymen, and that bleeding may be visible in young minors. He further opined that, based on the age of the victim, defilement would typically result in tears; accordingly, he expressed the view that the victim was not penetrated by a large object.
15. On re-examination, he stated that his colleague had established that there was partial penetration. He explained that redness could result from various causes, and in this case, there was no evidence of infection, although he noted that infections may have an incubation period of up to 30 days.
16. On being examined by the court, he stated that in cases of defilement of a 10-year-old girl, injuries or tears would generally be visible for up to ten days, and that the size of the penile shaft would be a relevant factor.
17. The evidence of PW4 marked the close of the prosecution’s case. The court ruled that a prima facie case had been established and accordingly, the accused was called upon to enter his defense.
18. The appellant was the only witness for the defence. In his sworn testimony, he stated that the cause of the dispute was his wife’s alleged alcoholism, which had also led her to stop working. He explained that she would often return home late at night, leaving him to care for the children. The appellant admitted that on one occasion he had struck his wife when she returned home intoxicated, injuring her eyes and hands, and that she subsequently did not return to work for some time.
19. He narrated that the following morning, after the incident in question, he heard his wife wailing. Upon inquiry, she asked him why he had done “tabia mbaya” to her child. He questioned what she meant, but she initially did not respond. She then stated that the child had told her that he had done “tabia mbaya” to her the previous night. The appellant claimed that he advised his wife to take the child to the hospital, which they did that evening. He further explained that his wife later returned without the child and informed him that the child was at a friend’s place and that they had been advised to take her to Kitale County Referral Hospital. Thereafter, she packed her belongings and left the house.
20. The appellant further stated that on the night of the incident, they had had a disagreement. Later that night, he found his wife on the phone, and at about 1:00 a.m., she received a call and subsequently left the house. He was later arrested and taken to the police station. He denied committing the charges.
21. On cross-examination, he stated that his mother and grandmother had advised him to carry his own cross.
22. His evidence marked the close of the defense case. Judgment was subsequently delivered on 19/3/2025, upon which he was convicted and sentenced to forty years’ imprisonment.
23. Dissatisfied with the judgment of the trial court, the appellant lodged this appeal, seeking to have the conviction quashed and the sentence set aside. The appeal faults the judgment on the grounds that; that the element of penetration was not established; that the prosecution failed to discharge its burden of proof; that the prosecution’s evidence was fraught with contradictions and inconsistencies; and lastly, that his defense was rejected without cogent reasons.
24. The appeal has been argued by way of written submissions, which may be summarized as follows:
Appellant’s Submissions
25. On the ground that the element of penetration was not proved, the appellant submits that the evidence of the clinical officer who testified as PW4 did not establish penetration and was fraught with inconsistencies. He contends that PW4 stated that the victim’s broken hymen could have resulted from either infection or sexual activity, but did not specify the actual cause in this case. He refers to PW4’s testimony that, if defilement had occurred, there would have been tears, yet no tears were observed. He further argues that although PW4 indicated that the victim’s hymen was partially broken, he did not clarify whether the hymen appeared fresh or old. The appellant submits that where a witness gives contradictory evidence, such evidence should not be accepted as truthful, citing Riwala v R [1935] EA Appeal No. 570. He further relies on Allan Mungai Githongo v R Nairobi Appeal No. 343 of 2004, for the proposition that defilement can only be proved where there is credible evidence of penetration. He thus urged the court to find PW4 to be an incredible and unreliable witness.
26. The appellant further contends that the perpetrator was not properly identified. He argues that PW1 admitted that although there was no light, they used the light from a phone, which, in his view, indicates that the victim may not have clearly seen the person who entered the house. He further submits that PW2 testified that PW1 returned home early from school, but no evidence was tendered to show that PW1 actually attended school that day. He adds that PW2 also stated that when she woke up, the appellant was in bed with her, and admitted to having disagreements with him.
27. He relies on Ocharo Obaiygwa v R CA No. 64 of 2003, arguing that it is dangerous to convict solely on the evidence of a woman and a girl, as they may sometimes tell false stories that are difficult to resolve.
28. He reiterates the inconsistencies in PW4’s evidence, noting that the officer initially concluded that the victim had been defiled, yet also stated that defilement would ordinarily result in tears, which were absent. He further referred to PW4’s statement that, in a child aged ten years, tears would generally be visible up to ten days after defilement.
29. On the ground that his evidence was not adequately considered, the appellant argues that PW2 confirmed having disagreements with him and that they were not on good terms, which, he contends, indicates a possible grudge. He further notes that the pre-sentence report indicated that the victim continues to experience shame, guilt, and anger over the incident, and that she regrets reporting it. The appellant urges the court to consider these submissions and allow the appeal.
Respondent’s Submissions
30. On the issue of whether penetration was proved, the respondent submits that, citing Alex Chemwotei Sakong v R [2018] eKLR, so long as there is penetration, even if only superficial, the ingredient of the offence is established. Penetration need not be deep into the girl’s organ.
31. The respondent further cites Kassim Ali v R [2021] eKLR for the proposition that a sexual offence can be proved solely by the oral evidence of the victim.
32. The respondent reiterates the evidence of the victim, who testified that the appellant went to the kitchen where she was sleeping and demanded that the door be opened. Upon recognizing his voice, she opened the door. The appellant then instructed her to remove her clothes, and when she refused, he threatened to beat her. She then removed her skirt and underwear, and the appellant removed his trousers and “put his thing for peeing in hers”. The respondent submits that this evidence was corroborated by PW4, who stated that the victim’s labia minora and majora were inflamed and the hymen partially torn, and that the examining doctor concluded that the victim had been defiled.
33. On the issue of identification, the respondent submits that the appellant was known to the victim prior to the incident. The victim referred to him as “father Erick” and, in her evidence, called him “baba.” This was corroborated by PW2, who confirmed that the appellant was the victim’s stepfather. The respondent further submits that the victim identified the appellant by his voice and with the aid of light from a phone.
34. On the issue of the victim’s age, the respondent submits that her birth certificate, produced in court, recorded her date of birth as 28/1/2013, establishing that she was ten years old at the time of the incident. The respondent adds that the P3 form and treatment notes corroborate her approximate age as ten years.
35. On whether the appellant’s evidence was considered, the respondent submits that his contention that he was charged due to a dispute between the victim and her mother over alleged drunkenness was unsubstantiated. The respondent further submits that the evidence of the victim was corroborated, and for this reason, the trial court rightly found the complainant’s evidence to be consistent and credible, thereby rejecting the appellant’s testimony.
36. On the issue of sentence, the respondent submits that the minimum sentence under the Sexual Offences Act for defilement of a child below the age of eleven years is life imprisonment. The trial court, having exercised its discretion, imposed a sentence of forty years’ imprisonment, which the respondent submits was lenient rather than harsh.
37. The respondent therefore prays that the appeal be dismissed.
Issues, Analysis and Determination
38. Having answered to the duty on a first appeal, the court has considered the grounds of appeal, the record of the trial court, and the submissions of both the appellant and the Respondent, and identifies the following issues for determination:
a) Whether the ingredients of the offence of defilement were proved by the prosecution against the appellant, beyond reasonable doubt?
b) Whether the defense advanced by the appellant was duly considered by the trial court?
Whether the ingredients of the offence of defilement were proved by the prosecution against the appellant beyond reasonable doubt.
39. Section 8(1) of the Sexual Offences Act codes that an offence of defilement occurs when person commits an act which causes penetration with a child. In George Opondo Olunga v Republic [2016] eKLR, the Court held that to establish defilement, the prosecution must prove three essential elements; the age of the victim, penetration, and proper identification of the perpetrator. Those elements must be cumulative and just failure to prove one of the three is fatal to the prosecution’s case.
40. On the age of the victim, the Court of Appeal, in Hadson Ali Mwachongo v Republic [2016] eKLR, emphasized that proof of the victim’s age is an essential element of the offence because the prescribed sentences are dependent on the age of the victim.
41. The same Court of Appeal, in Edwin Nyambogo Onsongo v Republic [2016] eKLR, observed that the age of a victim may be proved through credible documentary evidence, such as a birth certificate or baptismal card, by oral evidence from the child if sufficiently intelligent, by testimony of parents or guardians, or through medical assessment. The Court stressed that the evidence, regardless of form, must be credible and reliable. The court stated as follows:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
42. In the present case, PW3 produced the victim’s birth certificate, admitted as PExh1, showing that she was born on 28/1/2013. Given that the incident occurred on 23/10/2023, it was by evidence established beyond doubt that the victim was ten (10) years old at the material time. Court therefore finds that the production of the birth certificate was sufficient and credible proof of the victim’s age.
43. Penetration is by section 2 of the Sexual Offences Act defined the partial or complete insertion of the genital organ of a person into the genital organs of another person.
44. The testimony of a victim alone is, in itself, sufficient to establish penetration under section 124 of the Evidence Act Cap 80 provided that the court gets satisfied that the victim is speaking the truth.
45. The core of the prosecution’s case rested upon the oral evidence of the victim, PW1. PW1 recounted that on 23/10/2023 at 10:00 p.m., while preparing her mosquito net, she heard a knock at the door and recognized the voice of her father, the appellant. She opened the door, and he instructed her to remove her clothes. Upon her refusal, he threatened her with a stick. The appellant then removed her skirt and underwear and engaged in sexual intercourse with her. The victim’s testimony, in her own words, was that “he put his thing for peeing in mine. It is of critical note that upon the court administering voire dire on the witness, it was never satisfied that she was possessed of sufficient intelligent to be able to appreciate the magnitude or meaning of an oath and thus directed that she gives unsworn statement.
46. That position brings to question the weight to be accorded to that evidence and the legal consequence of receiving unsworn evidence from a victim of such tender years. While Section 124 of the Evidence Act, Cap 80, allows a conviction in a sexual offence to be founded solely on the oral evidence of the victim, provided the court is satisfied that the victim is telling the truth, this provision applies primarily to sworn testimony. For the unsworn evidence of a child of tender years, a distinct and stringent rule of prudence applies. Where the court finds the witness’s reliability insufficient to permit sworn evidence, the resulting unsworn statement must be treated with profound caution and cannot form the sole basis of conviction unless corroborated in a material particular that implicates the accused.
47. The foregoing is the guidance one derives from the decision in Amber May vs The Republic [1979] KLR. 38 where the High Court held that unsworn statement has no probative value notwithstanding the provisions Section 211(1) of the Criminal Procedure Code. On Appeal against that decision and reported as May vs The Republic [1981] KLR. 129, the Court of Appeal held-
“From all this we are satisfied that an unsworn statement is not evidence as that expression is generally understood. It has no probative value, but should be taken into consideration in relation to the whole of the evidence….an unsworn statement is not, strictly speaking evidence and the rules of evidence, cannot be applied to unsworn statement. It has no probative value, but it should be considered in relation to the whole of the evidence. Its potential is persuasive rather than evidential. For it to have value it must be supported by evidence recorded in the case.”
48. More recently, in Waithaka v Republic [2024] KEHC 3523 (KLR), the court held that when cross-examination was not allowed for a (minor) complainant not possessed of sufficient intelligence and given without an oath, the unsworn evidence was rendered worthless and this failure was fatal to the prosecution’s case. The court held as follows:
“Section 124 of the Evidence Act could have been useful. However, it is not since the minor was either untruthful or confused. There is no other evidence against the Appellant.
The worst part of the matter, is that we do not know which part, this particular Appellant is said to have penetrated and with what gadget was used. To makes matters worse, the evidence of the minor is worthless. There is a difference between unsworn evidence given by an accused and unsworn evidence given by a witness.
Witness unsworn evidence must still be subjected to cross examination. In this case, the court failed the parties by failing to allow the Appellant to cross examined the minor. Without cross examination the evidence is as if it was never given. That is a lapse in the procedure.”
49. Accordingly, while it is true in law that, even the sole evidence of the victim may suffice to found a conviction in sexual offences, that evidence must itself be cogent and credible to the satisfaction of the court. In this matter, the evidence of the victim falls far short of passing as credible but worthless. It is worthless for all intents and purposes and could not have been the basis to prove identification and the fact of penetration.
50. That holding leaves the only other evidence to be that of the medical officer, PW4. That witness told the court that the victim was examined by his colleague on 26/10/2023 and that her hymen was slightly open, with inflammation and redness on the labia minora and majora, though without tears. He explained that such findings could result from infection or sexual activity. The evidence was that open ended and not affirmative of genital penetration as the only cause of the observations made on the victim’s genitalia. It left it possible that even an infection could have resulted in the observations made. That kindly of evidence creating different possibilities invite reasonable doubt in the mind of the court which doubt must always be resolved in favour of the accused. To the extent that the trial court failed to give the benefit of that doubt to the appellant, it erred. That error must now fall for remedy on an appeal like this.
51. The appellant fault of PW4’s evidence as inconsistent is thus well founded. The court notes that while the officer concluded that the victim had been defiled, he also stated that defilement typically results in tears, which were absent. PW4 further asserted that in a child aged ten, tears would generally remain visible for up to ten days. That was yet another aspect of the evidence that created reasonable doubt whether there was indeed a penetration of the victim as alleged.
52. It is thus to court, upon reevaluation of the evidence on record that there was never credible evidence on the elements of penetration and identification. Without proof of the two beyond reasonable doubt, the conviction entered by the trial court stands shaky and unsafe. When so shaky and unsafe the same invite quashing.
53. Having reached the conclusion that there was never proof of penetration and identification of the appellant as the perpetrator, no useful purpose would be served by seeking to evaluate how well the evidence of the appellant was considered. The court finds the appeal merited and allows it with the consequence that the conviction is quashed and the sentence founded upon it set aside.
54. Let the appellant be set at liberty forthwith unless otherwise lawfully held.
Dated, signed and delivered Virtually this 21st day of November 2025.
Patrick J O Otieno
Judge
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